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en-usTechdirt. Stories filed under "playboy"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Mon, 4 May 2015 15:37:01 PDTEuropean Court To Explore If Linking To Infringing Material Is InfringingMike Masnickhttps://www.techdirt.com/articles/20150417/06060530693/european-court-to-explore-if-linking-to-infringing-material-is-infringing.shtml
https://www.techdirt.com/articles/20150417/06060530693/european-court-to-explore-if-linking-to-infringing-material-is-infringing.shtmlis not infringement. That was a case involving a news aggregator linking to official sources. However, in a new case that has been referred to the CJEU, the court will examine if links to unauthorized versions of content is infringing as well. The excellent IPKat has the details of the case which involves a blog that linked to some pre-publication Playboy photos in the Netherlands. A lower court had said that it wasn't copyright infringement, but still broke the law, by facilitating access. On appeal, the court found that the free speech concerns outweighed the copyright concerns. From the description by the lawyer representing the blogger ("Geen Stijl news"):

We lodged an appeal on behalf of Geen Stijl on a few grounds which was successful: the Court of Appeal had misapplied the 'quotation' exception in copyright law and did not sufficiently balance the freedom of speech versus copyright protection, as it indicated that 'only in exceptional circumstances' would the freedom of speech outweigh copyright protection, as freedom of speech concerns are taken into account in the law, in particular in the exceptions. The Supreme Court followed our reasoning that copyright is a fundamental right, but that the same goes for the freedom of speech, and that they thus should be considered on equal footing. The Court of Appeal should therefore have considered all relevant circumstances (among which is whether this is commercial speech or a news item) and not only exceptional circumstances. Never before has the freedom of speech been given so much weight in The Netherlands.

That's the good news. On the flip side, Sanoma, the Dutch publisher of Playboy, has appealed on its own, and that's the question that is going to the CJEU. It basically asks how to apply that earlier ruling saying linking is not infringing to a case in which the content being linked to is not authorized -- and whether it matters if the linker knew or should have known the content was infringing.

Given the scenario, this could become a rather important copyright case in Europe, considering how frequently people may end up linking to content that may be infringing.

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]]>againhttps://www.techdirt.com/comment_rss.php?sid=20150417/06060530693Fri, 14 Sep 2012 07:59:00 PDTDutch Court Says Linking Can Be A Form of Copyright InfringementMike Masnickhttps://www.techdirt.com/articles/20120914/05442020382/dutch-court-says-linking-can-be-form-copyright-infringement.shtml
https://www.techdirt.com/articles/20120914/05442020382/dutch-court-says-linking-can-be-form-copyright-infringement.shtmllinking to infringing content could be infringing itself, if certain conditions are met (which they were in this case). The key part here was that the site that was sued was linking to material first, and thus revealing it to the world... even though it does not appear that the site in question uploaded or hosted the content. This is troubling for a variety of reasons which we'll get to, but first the background of the case.

A Dutch television presenter, Britt Dekker, did a nude photoshoot for Playboy, and a bunch of the images leaked ahead of the December, 2011 release of the magazine. A website called GeenStijl.nl had a story about it, and included a link to a zip file that contained all the images that had been uploaded to the cyberlocker FileFactory.com. Playboy had the file taken down from FileFactory, and GeenStijl linked again to the same images on Imageshack. And from there a game of whac-a-mole followed with Playboy having the images taken down, but the images quickly spread all over the place. For what it's worth, at the time, there was a lot of speculation that Playboy itself had leaked the images to build up buzz.

Either way, GeenStijl got sued for copyright infringement -- and they responded by pointing out that they just linked to the content. The court put forth a three pronged test, and found that GeenStijl, even with just links, met the criteria for infringement. As explained on the FutureOfCopyright site (linked above):

The court considered if the publishing of the hyperlinks by GeenStijl.nl constituted a publication (Dutch: ‘openbaarmaking’) as defined in article 12 of the Dutch Copyright Act. In principle, placing a hyperlink on a website is not a publication, unless three criteria are met: there must be an intervention, a new audience and profit.

Intervention: The leaked pictures of Britt Dekker were stored on FileFactory.com, a cloud service to store files and share them with others. However, these files can’t be found through search engines, only users with the exact URL have access to the files. The URL to the file with the leaked pictures was publicly unknown, until GeenStijl.nl made it available to its large audience by publishing an article about it, the court says. Therefore, the actions of GeenStijl.nl are an intervention, according to the court. Without this intervention, the public wouldn’t have had access to the pictures before their official publication in Playboy.

New audience: According to the court, there wasn’t an audience for the pictures before GeenStijl.nl published its article.

Profit: By publishing the URL to the pictures, GeenStijl.nl had the unmistakable intention to attract more visitors, the court states. With success: in 2011, the article about Dekker was the best viewed topic on GeenStijl.nl, according to the statistics.

By my reading, all three of the prongs of the test, as presented here, are somewhat problematic. The reasoning on the first prong -- intervention -- just doesn't seem right. The claim that "the public wouldn't have had access" but for the link on GeenStijl isn't true. They did have access since the files were already on the cyberlocker. GeenStijl perhaps made it a lot more widely known, but at this point you're arguing about whether or not it's legal to make a factual statement. Did the photos exist on a cyberlocker? Yes. Saying so shouldn't be infringing.

The second prong really just seems like a repeat of the first prong. The entire argument that seems to have convinced the court is that GeenStijl was the first to link to the content. Under US law you face much more liability for leaking "pre-release" material, so you could argue that this is a similar situation in the Netherlands, but again, it's not GeenStijl "leaking" the material. They're acting as a journalist, telling people such content exists.

The final prong is completely useless. Basically it seems to say that because the article was popular, that's evidence for infringement. I can't see how that makes any sense at all. If GeenStijl was, for example, selling access to the images, then there's a much stronger argument of "profit." But just saying that because the site got a lot of traffic, they profited seems like a dangerous precedent.

The Future of Copyright article mentions the cases against FTD as being similar, but I'm not sure that's true. While a lower court had found FTD guilty for linking, on appeal it was said that links weren't the problem, it was the promoting of uploads that got FTD in trouble.

Either way, it's of little surprise that Tim Kuik, the head of the Dutch anti-piracy group BREIN, is cheering on this ruling, suggesting that this case will be useful in other efforts to go after sites that link to infringing content. Of course, given the specific nature of the ruling, including how much of it seemed to rely on the fact that GeenStijl was the first to somehow create an audience for these images, I do wonder if it really has that much value for BREIN in those types of cases. Similarly, it may be a bit exaggerated to claim -- as GeenStijl did in response to the ruling -- that the ruling outlaws Google. Again, the ruling does appear to be highly fact-specific.

It is a troubling ruling for a number of reasons. Merely setting up the precedent that a link itself is infringement has all sorts of problematic implications. But the highly specific details associated with the ruling, especially the reliance on being the first to publish the link, at least suggests that this has limited value as a wider precedent.

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]]>seems-a-bit-extremehttps://www.techdirt.com/comment_rss.php?sid=20120914/05442020382Wed, 27 Oct 2010 15:39:46 PDTModel Wins Lawsuit Against French Playboy For Publishing 'Unauthorized' Naked PhotosMike Masnickhttps://www.techdirt.com/articles/20101027/04560211605/model-wins-lawsuit-against-french-playboy-for-publishing-unauthorized-naked-photos.shtml
https://www.techdirt.com/articles/20101027/04560211605/model-wins-lawsuit-against-french-playboy-for-publishing-unauthorized-naked-photos.shtmlwon damages against French Playboy for publishing what were referred to as "unauthorized" photos of her in their June issue. Tragically, much of the reporting on this doesn't explain what kind of photos we're talking about (from the description, it almost sounded like photos taken while she was unaware). However, in the interest of understanding the legal implications only (of course), I (ahem) found the photos in question (oh so very NSFW). The photos all appear to be professional studio shots, most likely from a single photoshoot. Stone claims that her main complaint was just that "no woman wants photos of them to be published in Playboy without permission." However, I'm wondering how French Playboy got the photos in the first place, and if it wouldn't have a claim against the photographer, if he had claimed the rights to the photos (and produced a signed model release form). Obviously, the photos themselves were initially taken with permission, since it's clearly a professional photoshoot. So, where in the process did the photos become "unauthorized"?